United States District Court, D. Idaho
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Honorable Edward J. Lodge U.S. District Judge
before the Court is Defendants Robert Wilkie, Michael J.
Murphy, David A. Wood, Andrew Wilpher, and Keri Barbero's
Motion to Dismiss. (Dkt. 15.) The motion is now ripe. Having
fully reviewed the docket herein, the Court finds that the
facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that
the decision-making process would not be significantly aided
by oral argument, this matter shall be decided on the record
before this Court without oral argument.
21, 2015, the Boise Veteran Affairs (“VA”)
Medical Center issued an Order of Behavioral Restriction
(“OBR”) for Lietz on the grounds that he
demonstrated disruptive and threatening behavior towards the
Boise VA Medical Center staff during a May 5, 2015 phone call
to the center. The OBR required Lietz to check in with the VA
police when he arrived at the Boise VA Medical Center and for
Lietz to have a police escort to his medical appointments on
the center's premises.
15, 2015, Lietz filed an appeal of his May 21, 2015 OBR. On
August 12, 2015, Lietz was reportedly informed by a Boise VA
Medical Center employee that his appeal was not forwarded to
the VISN-20 Network Director. On July 7, 2016, the Boise VA
Medical Center revoked the May 21, 2015 OBR.
6, 2017, Lietz was issued a second OBR, allegedly because the
Boise VA Medical Center was concerned about Lietz's
potential for violence towards VA employees due to
Lietz's aggressive behavior and abusive language in his
prior interactions with VA staff. The second OBR imposed the
same conditions as the first one.
26, 2017, Lietz filed an appeal of his second OBR and mailed
a copy of his appeal to the VISN-20 Network Director. On July
20, 2017, the agency issued its initial decision. On August
31, 2017, Lietz appealed the decision. On November 2, 2017,
the Office of General Counsel issued a final agency decision,
denying Lietz's appeal. On May 8, 2018, Lietz filed an
administrative claim regarding the second OBR, which was
denied on June 19, 2018. The June 6, 2017 OBR is still in
December 13, 2018, Lietz filed the present suit against
Defendants Robert Wilkie, Lawrence Carroll, Michael J.
Murphy, David A. Wood, Andrew Wilpher, and Keri Barbero. The
Complaint asserts eight Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), causes of action: (1) Violation of 1st Amendment
Rights to Free Speech, and Expression; (2) Violation of 1st
Amendment Rights to Petition the Government for a Redress of
Grievance; (3) Retaliation in Violation of the 1st Amendment;
(4) Violation of 5th Amendment Rights; (5) Violation of 9th
Amendment Rights; (6) Violation of 38 C.F.R. § 17.33(g);
(7) Violation of C.F.R. § 17.33(i); and (8) Violation of
38 C.F.R. § 17.107.
April 8, 2019, Defendants Robert Wilkie, Michael J. Murphy,
David A. Wood, Andrew Wilpher, and Keri Barbero,
and through Peter L. Wucetich, Assistant United States
Attorney for the District of Idaho, filed the pending motion
to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).
Rule 12(b)(1), a party may move to dismiss based on a
court's lack of subject matter jurisdiction. See
Fed.R.Civ.P. 12(b)(1). “It is a fundamental precept
that federal courts are courts of limited jurisdiction . . .
[and] limits upon federal jurisdiction . . . must be neither
disregarded nor evaded.” Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 374 (1978). “When
considering a motion to dismiss for lack of subject matter
jurisdiction, the court presumes the factual allegations of
the complaint are true and draws reasonable inferences in
favor of the non-moving party.” Whisnaut v.
U.S., 400 F.3d 1177, 1179 (9th Cir. 2005). This tenet
that allegations must be taken as true, however, does not
extend to legal conclusions contained in the complaint.
See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
The plaintiff has the burden of establishing that subject
matter jurisdiction is proper. See Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377 (1994).
Rule 12(b)(6), a party may move to dismiss based on the
failure to state a claim upon which relief may be granted.
See Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure
8(a)(2) requires a complaint to contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly,550 U.S. 544, 554 (2007) (internal citations
omitted). In considering a Rule 12(b)(6) motion to dismiss, a
court must take all allegations of material fact as true and
construe them in the light most favorable to the nonmoving
party, although “conclusory allegations of law and
unwarranted inferences are insufficient to avoid a Rule
12(b)(6) dismissal.” Cousins v. Lockyer, 568